TMI Blog1956 (2) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... 25, 1949, under section 34 as amended by Act XLVIII of 1948 is invailld as the Department's right to revise the assessment was governed by the old section 34 where the period of limitation prescribed was only four years in the case of a failure to file a return, and this period having expired on 31st March, 1947, that is, four years from the end of the year of default, and the amended Act having come into force only from March 30, 1948, the right year period provided therein could not be invoked, and (2) that the amount was not remitted directly by the non-resident husband to the wife but through an intermediary and therefore such income could not be deemed to be an income of the wife under the provision of section 4(2) of the Act. Both the contentions were negatived by the Tribunal. The questions referred to this Court under section 66(1) of the Act were: (1) Whether the proceedings under section 34 of the Indian Income- tax Act initiated on July 25, 1949, to assess the amount of ₹ 9,180 which escaped assessment during the year 1942-43 by failure to submit voluntary return are valid in law? (2) Whether on the facts and circumstances of the case, the sum of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had run out by efflux of time. Mr. Rama Rao Sahib, the learned counsel for the Department, urged that the language of the amended section 34 was clear enough, and that whatever might have been the period of limitation under the unamended section 34, it was the new period of limitation under the amended section 34 that would apply under the express language of the amended section 34. Both the learned counsel relied on the observations of Chakravrtti, C.J., in Income-tax Officer v. Calcutta Discount Co. Ltd. In Income-tax Officer v. Calcutta Discount Co. Ltd.[1953] 23 I.T.R. 471, the assessee was assessed to income-tax for the assessment years 1942-43, 1943-44 and 1944-45, under section 23(3) of the Act, on returns furnished by the assessee. The amended section 34 came into force on 30th March, 1948. On 28th March, 1951, notices were issued to the assessee under section 34 of the Act on the ground that the Income-tax Officer had reason to believe that the income for each of the years had been under assessed. One of the contentions of the assessee was that under the language of the amended section 34 no proceedings at all could be taken for any of the assessment years prior to 30t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred : Gopeshwar Pal v. Jiban Chandra[1914] I.L.R. 41 Cal. 1125. The subject-matter of section 34 being essentially a rule of limitation, the matter requires a little more careful scrutiny. The learned Chief Justice continued: But since section 34 had a predecessor which prescribed the same limits of time for initiation of proceedings, more or less in the same circumstances, it would prima facie appear that by the new section no pre-existing rights are adversely affected. As we have pointed out earlier, in the case of that assessee, the Calcutta Discount Co. Ltd., the amended section 34 did not effect any change in the rule of limitation. That was obviously what the learned Chief Justice stressed again in the passage we have just quoted. At page 490 the learned Chief Justice observed: Nor is the enlargement of time for the completion of an assessment a violation of any right, for, if a man is liable to be proceeded against, he cannot say that he has right to be proceeded against within a certain time or not at all.............. Provided that the right or liability is not itself affected, the time for asserting the right or enforcing the liability may always be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into force of a later enactment, then such a barred right is not revived by the application of the new enactment. It is on this basis that we have to decide the question, whether the amended section 34, either by express terms or by necessary intendment, provided that, even in cases where the period of limitation in force before 30th March, 1948, had expired, the effect of the amended section 34 is to confer jurisdiction on the assessing authority to reassess the income of a year which could not have been reassessed at any point of time anterior to 30th March, 1948. It should be remembered that the amended section 34 did not prescribe a period of limitation for the first time. It amended the existing law prescribing a period of limitation. Under such circumstances, what is the effect of the amendment is the question, and that question has to be decided on the basis of the well settled principle of law, that if the exercise of a right had become barred by the provisions of the Act then in force, such a right is not revived by the application of a new enactment. In the present case, the right to reopen the assessment in the case of the assessee under the old section 34 expired on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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